Stark v. Stark

Appeal
from the Circuit Court for Shelby County No. CT-002958-18
Robert Samual Weiss, Judge

In this
accelerated interlocutory appeal, Wife appeals the trial
court's denial of her motion to recuse the trial judge in
her divorce case. Specifically, Wife argues that the trial
court's rulings demonstrate a bias against her because
the trial court purportedly ruled in favor of Husband in
excess of the relief requested. We affirm the trial
court's denial of Wife's motion to recuse.

Plaintiff/Appellant
Pamela Diane Stark ("Wife") filed a complaint for
divorce against Defendant/Appellee Joe Edward Stark
("Husband") on June 29, 2018. Wife is a licensed
attorney working for the District Attorney General of the
Thirtieth Judicial District. Husband works as a police
officer for the Memphis Police Department. On November 28,
2018, Wife, after obtaining leave of court, filed an amended
complaint to assert that Husband had committed battery and
intentional infliction of emotional distress against her.
According to Wife, the battery allegations result from an
incident of domestic violence that occurred on June 17, 2018.
Although Wife's employer recused from the matter and a
special prosecutor was appointed, Wife asserts that the
Memphis Police Department continues to investigate the
matter.

In
support of the divorce and tort actions, Wife caused six
subpoenas to be issued for the depositions of Husband and
other witnesses, including a lieutenant from the Memphis
Police Department. The notices indicated that five of the
depositions, including Husband's, would be taken at the
marital residence. The final deposition was to take place in
Missouri where the witness resided. On January 9, 2019,
Husband filed a motion for a protective order seeking that
all in-person depositions be taken at the Shelby County
courthouse, that a bailiff be present for Husband's
deposition, and that the out-of-state deposition take place
remotely.

A
hearing on Husband's motion was held on January 25, 2019.
No transcript or statement of the evidence from this hearing
is included in the record.[1] On February 13, 2019, the trial court
ruled that Husband's motion was "reasonable under
the circumstances." As such, the trial court ordered
that the depositions of Husband, as well as well as Sgt.
Mote, Anthony Mullins, Daniel Cordero, and James Erwin would
take place at the Shelby County Courthouse and that a bailiff
would be present for Husband's deposition.[2] The trial court
denied, however, Husband's request that the deposition of
the out-of-state witness be taken remotely, ruling that the
deposition would take place in Missouri unless the witness
agreed to be deposed in Shelby County.

In the
meantime, on January 15, 2019, Husband filed a petition for a
restraining order under rule 65.03 of the Tennessee Rules of
Civil Procedure. Therein, Husband alleged that Wife was
posting on her personal Facebook page allegations against
Husband with regard to domestic violence. Additionally,
Husband alleged that Wife "disparaged the Memphis Police
Department's internal handling and investigation of said
case." Husband argued that such dissemination of these
allegations could cause immediate irreparable harm to
Husband's reputation and employment. As such, Husband
requested that the trial court enter an immediate temporary
restraining order requiring Wife to remove the posts and to
refrain from making similar posts or comments in the future.
Wife responded in opposition to Husband's petition on May
21, 2019. Therein, Wife admitted to making the posts, but
asserted that her comments concerned a matter of public
concern protected by the United States and Tennessee
Constitutions. Finally, Wife asserted that Husband's
motion was an attempt to harass Wife and "bias [the
trial judge] into a belief that 'contentiousness'
exists between the parties."

A
hearing on Husband's petition was held on February 7,
2019. Husband testified that Wife had engaged in various
alleged harassing behavior, including notifying his
lieutenant of the allegations and posting about the domestic
violence allegations on her personal Facebook page. According
to Husband, these posts were visible to his co-workers and
clearly suggested that he was a domestic abuser. Likewise
Husband testified that after filing his petition, Wife
informed his counsel that she had also sent a letter to
Memphis Mayor Jim Strickland concerning alleged corruption in
the Memphis Police Department; the letter specifically
referenced Husband and the allegations against him. Husband
explained that an investigation into the allegations was
ongoing, but that the allegations alone could be injurious to
his reputation with his employer. Finally, Husband indicated
that Wife's actions were harassing and done in an effort
to intimidate him. Wife chose not to testify; rather she
provided only legal argument that her statements were
protected by the First Amendment. In contrast, Husband's
counsel argued that the mandatory injunction in place at the
time the divorce complaint was filed prohibited the parties
from harassing or making disparaging comments about each
other, including to employers, and that the injunction should
be extended to force Wife to remove the offending posts.

Following
the argument of the parties, the trial court ruled that
Wife's argument regarding the First Amendment was not
well-taken because her allegations did not refer to
corruption generally as a matter of public concern, but with
regard to the allegations against Husband specifically, which
action was prohibited by the mandatory divorce injunction. As
such, the trial court ruled that Wife was to remove the
offending posts the same day and that "a mandatory
injunction will go into effect that there will be no
communication with employers." The trial court also
ruled that "making any further allegations in social
media is completely inappropriate and is being
enjoined." Thereafter the following exchange occurred:

[Wife]: Well, Your Honor, I will just with all candor to the
Court say you might as well take me into custody right now. I
have contacted the FBI as well as having contacted the mayor
of Memphis to try and get this addressed. I am saying that I
am a victim of corruption from the Memphis Police Department,
and I am going to pursue every course of action I have and -

THE COURT: Ms. Stark, are you going to remove that post, yes
or no?

[Wife]: I am not.

THE COURT: Officer Houston, take her into custody.

We'll stand in recess.

(Short break.)

THE COURT: Ms. Stark, please stand. Are you going to comply
with this Court's orders?

[Wife]: No, I'm not.

THE COURT: All right. I'm making a finding that you are
in direct contempt of court by willfully refusing to comply
with this Court's orders. You . . . will be held in
custody until such time that you decide that you want to
change your position and you ...

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